[00:00:43] Speaker 03:
Yeah, please, Court, if I could just, two things, preliminary matters.

[00:00:47] Speaker 03:
First, if I could just, with Court's permission, wish a quick congratulations to Judge Katsas on his appointment to this Court.

[00:00:56] Speaker 03:
Thank you.

[00:00:57] Speaker 03:
Okay.

[00:00:58] Speaker 03:
And also, if I could reserve two minutes of rebuttal time, it would be fine.

[00:01:03] Speaker 03:
Very well.

[00:01:04] Speaker 03:
Thank you, Sir.

[00:01:05] Speaker 03:
And now, if I could get right to the case and explain where I think the lower court erred

[00:01:10] Speaker 03:
And in the limited time that we have, while I concede none of the claims, I do want to focus my attention this morning on the retaliation claim.

[00:01:24] Speaker 03:
And I think that the first error that the judge made was with respect to the time period of the gap.

[00:01:32] Speaker 03:
And this is important, and I believe it is on the latter part of the opinion that the court has.

[00:01:39] Speaker 03:
I can find it for you in the joint appendix.

[00:01:43] Speaker 03:
But in principle, as I do that, the judge focuses, he calls it a seven-month gap.

[00:01:49] Speaker 03:
and actually it was only a six-month gap.

[00:01:52] Speaker 02:
This turns on whether you measure the beginning point from when he filed the complaint or from when his supervisors were dragged into the proceeding in depositions before the agency.

[00:02:05] Speaker 03:
That's correct, Your Honor.

[00:02:06] Speaker 02:
Suppose we give that point to you.

[00:02:08] Speaker 02:
Yes.

[00:02:09] Speaker 02:
You're still talking about

[00:02:11] Speaker 02:
a six month gap.

[00:02:13] Speaker 03:
That's correct.

[00:02:14] Speaker 02:
You have an agency explanation that is perfectly neutral that this is part of a broader reorganization.

[00:02:24] Speaker 02:
You have no

[00:02:29] Speaker 02:
direct or suggestive evidence that one often sees in these cases, comments from supervisors or coworkers or whatever.

[00:02:36] Speaker 02:
And to me, most difficult for your side of the case, you have the fact that long after, I'm sorry, is it dry act?

[00:02:49] Speaker 02:
Dry lack dry like a lot long after mr. Dry lack has even retired.

[00:02:54] Speaker 03:
I'm sorry.

[00:02:54] Speaker 02:
I know it's actually tree lack tree lack Sorry long after mr. Tree lack has retired all of the remaining supervisors are reassigned consistent with the agency explanation that there's just a broader reorganization going on here and

[00:03:11] Speaker 03:
Well, Your Honor, those are all fair points and I'd like to address them one at a time.

[00:03:15] Speaker 03:
Sure.

[00:03:15] Speaker 03:
Okay.

[00:03:16] Speaker 03:
So I think the second error that the lower court judge made in his opinion is that he did not consider the question that

[00:03:30] Speaker 03:
Mr. Drilak had raised, both at the lower court and in this court, the change in the reason, meaning while there was no comments, as your honor is quite correct, there was no comments, age-related comments or anything like that.

[00:03:45] Speaker 03:
If you look on page 244 of the appendix, so there it says that the CID was under, they had to do this

[00:03:58] Speaker 03:
because they had the loss of the other special agents in that sector over there.

[00:04:09] Speaker 03:
So that reason was challenged.

[00:04:13] Speaker 03:
That reason was undermined.

[00:04:15] Speaker 03:
And it's undermined based on two things.

[00:04:20] Speaker 03:
One is on page 278 of the record.

[00:04:23] Speaker 02:
where the... Sorry, just help me with the acronyms.

[00:04:27] Speaker 02:
The CID is the entity to which these people are being transferred.

[00:04:33] Speaker 03:
Yes, out of.

[00:04:34] Speaker 03:
They're going from FRP to CID.

[00:04:39] Speaker 03:
To CID, that's right.

[00:04:40] Speaker 03:
And that was, and my client's contention here is that the loss of the four people was something... Was in retaliation.

[00:04:47] Speaker 03:
Was in retaliation and it would reasonably dissuade

[00:04:51] Speaker 03:
someone from filing and the judge basically agrees with that or says that's a that particular point of the case.

[00:04:58] Speaker 02:
We'll give you that verse action too.

[00:05:01] Speaker 02:
Let's talk about causation.

[00:05:02] Speaker 03:
Absolutely.

[00:05:03] Speaker 03:
Okay.

[00:05:04] Speaker 03:
So I think that what happens next is that on page 278

[00:05:10] Speaker 03:
of the record of the joint appendix.

[00:05:13] Speaker 03:
There is an issue here as to the four people are going to be handling the casework.

[00:05:23] Speaker 03:
The casework means the prosecution.

[00:05:27] Speaker 03:
the environmental crimes okay, which means they're already doing the work that Supposedly they needed them to transfer to okay plus one of the agents a miss blot Andrea blot so she testifies that I'm sorry you're on 278 and

[00:05:51] Speaker 03:
Yeah, I was on 278 of the joint appendix.

[00:05:54] Speaker 03:
And that is... I'm not seeing it.

[00:05:58] Speaker 02:
Where are you on the page?

[00:06:00] Speaker 03:
Okay, so you see the second paragraph?

[00:06:02] Speaker 02:
Evidence collection.

[00:06:03] Speaker 03:
Yes, evidence collection support.

[00:06:05] Speaker 03:
The primary purpose of the NSERT is to provide field evidence collection support for the investigation and prosecution.

[00:06:14] Speaker 03:
and radiological crimes.

[00:06:16] Speaker 02:
Your point, as I understand it from the briefs, your point is that CID and FOP were doing substantially similar things, and you have the

[00:06:31] Speaker 02:
sound bite of they're transferring supervisors, they're only transferring supervisors.

[00:06:39] Speaker 02:
But that is exactly what one would expect if the agency's proffered rationale were the real one.

[00:06:52] Speaker 02:
Which is it's a big government, lots of different components or agencies do similar things and high level supervisors often decide to shift personnel from one office to the other and.

[00:07:07] Speaker 02:
You wouldn't you wouldn't enlist the Public Affairs Office to take over the criminal enforcement.

[00:07:14] Speaker 03:
You didn't you'd enlist an office that's doing similar things What happened here was there's a change of reason they didn't say that wasn't the reason meaning that was the second reason and you have this

[00:07:32] Speaker 03:
A bot who says, and I do apologize for this, I said in my brief it was on essay 10, it's actually essay eight.

[00:07:40] Speaker 03:
And what she says, supplemental.

[00:07:43] Speaker 03:
Is essay supplemental?

[00:07:45] Speaker 03:
Yeah, supplemental.

[00:07:46] Speaker 03:
So if you look on essay eight of that,

[00:07:50] Speaker 03:
What you have, in fact, I see you have three minutes left.

[00:07:54] Speaker 03:
What I'd like to do is just- We'll let you finish.

[00:07:57] Speaker 03:
Okay, sure, but I'd be willing to punt my rebuttal time to make this point, is that she says there was a call.

[00:08:05] Speaker 03:
It involved all of the agents, all of the supervisors.

[00:08:10] Speaker 03:
They were told on the call that they were going to keep doing, they substantially, the same duties.

[00:08:16] Speaker 03:
Only thing that would change is the supervisor.

[00:08:20] Speaker 03:
Now, I do want to add one other case.

[00:08:22] Speaker 03:
One other case, and I do find, and I will file a 28J, I believe it is.

[00:08:27] Speaker 03:
And I gave a copy of this, I offer the copy of this to the government this morning, okay?

[00:08:32] Speaker 03:
The case is Urgo Robinson versus Urgo, okay?

[00:08:37] Speaker 03:
It's a district court case.

[00:08:39] Speaker 03:
I'm very familiar with the case because I was a defense lawyer on the case, believe it or not.

[00:08:44] Speaker 03:
There was a jury trial on it with Judge Bates.

[00:08:47] Speaker 03:
I won the jury trial, but I could not get summary judgment on this case.

[00:08:51] Speaker 03:
And Judge Bates writes in his memorandum of opinion, in fact I couldn't even get directed verdict on this thing, that basically when you have a gap,

[00:09:02] Speaker 03:
When you have a gap of six months, and as the Supreme Court says in the Clark case, which is very important, that the Supreme Court says that cases that accept near temporal proximity between an employer's knowledge and of the protected activity and an adverse action must be sufficient evidence of causality to get through this.

[00:09:27] Speaker 03:
But this is not his case.

[00:09:29] Speaker 03:
This is not a case that Mr. Drilak's case is not dependent upon a temporal proximity alone.

[00:09:38] Speaker 02:
I'm sorry, I'm still not seeing what else you have from the fact that the transferring agency and the transferee agency are doing similar things.

[00:09:55] Speaker 03:
I do not see any evidence in the record from the government that there was anything else done in this reorganization.

[00:10:07] Speaker 03:
It's a jury question, essentially.

[00:10:09] Speaker 03:
OK, so you say, after you said that we needed them, and now you change your mind on that.

[00:10:16] Speaker 03:
So now what you're saying, essentially, is they're going to do the same duties.

[00:10:21] Speaker 03:
They're going to change supervisors.

[00:10:23] Speaker 03:
And they're not going to give Mr. Drilak.

[00:10:24] Speaker 03:
He's not going to have those people replaced.

[00:10:27] Speaker 03:
So then the question is, OK, and clearly, Judge Cooper found that that was a loss to Mr. Drilak.

[00:10:34] Speaker 03:
So then the question becomes, okay, so was this really a reorganization that affected all the, as you say that it was?

[00:10:44] Speaker 03:
And there's no evidence that it was in this case.

[00:10:47] Speaker 03:
And I think all of that together.

[00:10:49] Speaker 02:
What about the evidence that all of the remaining supervisors were transferred over long after Mr. Drilak was gone?

[00:10:58] Speaker 03:
Well, maybe they did that in response to his suit.

[00:11:01] Speaker 02:
I mean, maybe, I think the key is... They transferred everyone in the division in order to cover their tracks and win this case?

[00:11:09] Speaker 03:
Well, I don't know about that, but the point is, the decision at the time, okay, the decision at the time for him was essentially the point that he's looking at.

[00:11:23] Speaker 03:
So, that's what I have.

[00:11:24] Speaker 03:
Thank you.

[00:11:25] Speaker 03:
Thank you.

[00:11:25] Speaker 03:
Appreciate it.

[00:11:47] Speaker 02:
Good morning.

[00:11:48] Speaker 01:
I'll start with addressing the points that a colleague raised in terms of the temporal gap between the last protected activity and the alleged adverse action.

[00:12:06] Speaker 01:
In this case, we don't accept the idea that supervisors were merely signing an affidavit representing another protected activity in this case.

[00:12:17] Speaker 02:
So the initial... No, but the ultimate question is whether the

[00:12:25] Speaker 02:
Adverse action on the back end was undertaken with a bad retaliatory motive and it doesn't seem implausible to say that the triggering event for the supervisor might have been the pain in the neck of getting dragged into this proceeding and having to Draft the affidavit and most managers find litigation distracting so that that part of his case doesn't seem to be crazy

[00:12:55] Speaker 01:
Well, these were managers that were experienced managers in this case that were directly towed by the plaintiff of his EO complaint in September of 2012.

[00:13:11] Speaker 01:
If there was a point in time to dread the dragging into litigation, that would have been another point in time where that could have happened.

[00:13:20] Speaker 01:
And that was much, much earlier than signing of the affidavits, almost a year earlier.

[00:13:25] Speaker 01:
And in that time, Mr. Drelac had- I'm sorry, I thought there was testimony

[00:13:35] Speaker 02:
This was Mark Barnett and Morrison.

[00:13:38] Speaker 02:
Yes, sir.

[00:13:39] Speaker 02:
And I thought there was testimony.

[00:13:41] Speaker 02:
Barnett's the second level supervisor who made the decision to reassign the four officers.

[00:13:47] Speaker 02:
That's correct.

[00:13:48] Speaker 02:
I thought there was testimony that he gave in his affidavit that he only learned about this case when he was forced to do that affidavit.

[00:13:58] Speaker 02:
Am I misremembering?

[00:14:00] Speaker 01:
I believe that was Mr. Barnett's memory.

[00:14:04] Speaker 01:
It was Mr. Dreilach who said in his affidavit to the EEO Complaint that he had provided this information to his managers in September of 2012.

[00:14:13] Speaker 01:
And that was approximately a few weeks after he had filed his EEO Complaint in August, or made his first contact in August of 2012.

[00:14:24] Speaker 01:
So at the very least, Mr. Morrison, perhaps Mr. Barnett knew about the complaint.

[00:14:29] Speaker 01:
And in that time, Mr. Jerelek received outstanding performance evaluations, cash bonuses, was constantly queried in terms of how the reorganization would impact

[00:14:43] Speaker 01:
his division was invited into meetings, hardly evidence of a retaliatory cabal set to make his life miserable or to run him out of the agency.

[00:14:56] Speaker 02:
But that point, I understand that point, I'm not sure that goes so much to the question of

[00:15:03] Speaker 02:
what the time gap is so much as just to the question that there doesn't seem to be a whole lot of evidence of causation here.

[00:15:12] Speaker 01:
That is true, Your Honor.

[00:15:13] Speaker 01:
There isn't much evidence of causation.

[00:15:15] Speaker 01:
I mentioned the time of September 2012 just to

[00:15:20] Speaker 01:
point out that there was a longer gap in time between the initial knowledge of these managers and to the removal of the four agents.

[00:15:30] Speaker 01:
The other point that my colleague mentions is that the reason for the reassignment seems to be, in his opinion, inconsistent.

[00:15:43] Speaker 01:
I believe that there's evidence in the record to demonstrate that this reorganization occurred over many years, started in some form in 2007 and continued over time, and went through many iterations.

[00:15:59] Speaker 01:
in many different test case and stroke proposals that were initially adopted and revised.

[00:16:09] Speaker 01:
But furthermore, I think fundamentally, getting into the rationale of the actual reorganization isn't really what we're here to discuss today.

[00:16:17] Speaker 02:
We're here to discuss if there was... Whether there's sufficient evidence that that proffer explanation

[00:16:25] Speaker 02:
from which a reasonable jury could find that that proffered explanation was pretext.

[00:16:30] Speaker 01:
Precisely, Your Honor.

[00:16:31] Speaker 01:
And the information that the plaintiff brought out today just seems to imply that the reorganization itself was somehow implicated in a retaliatory framework.

[00:16:44] Speaker 01:
We don't believe there's any evidence of that.

[00:16:46] Speaker 01:
We believe that for the reasons that we've presented here and in our brief, the court should affirm the district court's opinion.

[00:16:56] Speaker 01:
There's nothing else.

[00:16:57] Speaker 02:
Thank you, counsel.

[00:17:03] Speaker 03:
Sure.

[00:17:05] Speaker 03:
I think the question most that you asked before that I must confess, I've articulated my answer.

[00:17:13] Speaker 03:
And after listening to the U.S.

[00:17:17] Speaker 03:
attorney, I think your honor's troubled with the issue that later in the reorganization, other things happened.

[00:17:24] Speaker 03:
years later.

[00:17:25] Speaker 02:
Other things happen that seem wholly divorced from whatever friction there is with Mr. Trelac and that seems strong support for the proposition that there is this broader reorganization.

[00:17:43] Speaker 02:
It's been ongoing from

[00:17:44] Speaker 02:
long before he had his troubles and it's continuing long after and bit by bit and piece by piece it sweeps all of FOP into CID.

[00:17:55] Speaker 03:
I think I think the better way of articulating that as a plaintiff's lawyer here or Pelham's lawyer is that if your honor looks at the case not just in the vacuum of that particular action

[00:18:09] Speaker 03:
but with all of the actions, okay, with all the things this man claims happened to him, okay, the promotions he didn't get, and that's a whole other issue, with exhaustion, which I'm not getting into.

[00:18:21] Speaker 02:
The time barred claims can still set the backdrop for this.

[00:18:24] Speaker 03:
For that, meaning the question is at that moment, I think the better way of saying it is at that moment when they took away those four people,

[00:18:33] Speaker 03:
There's a jury question as to whatever they did years later.

[00:18:39] Speaker 03:
Was that part of the intent with the pattern to get rid of this man?

[00:18:43] Speaker 02:
That's really... So when I ask you what else do you have besides the time cap, the best answer is all of the other stuff that... Right.

[00:18:53] Speaker 02:
is the subject of your discrimination claim, which may or may not be independently actionable.

[00:19:00] Speaker 02:
Exactly.

[00:19:00] Speaker 02:
I think that's a much better answer.

[00:19:02] Speaker 02:
Thank you.